However, as in the majority of the cases in which the prisoners have lost, there was nothing in the ruling that could be construed as representing the delivery of justice after the eight and a half years that al-Bihani has spent in US custody, as he has been consigned to indefinite detention in Guantánamo, on an apparently legal basis, despite the fact that there is no evidence that he ever took up arms against anyone, or had any contact with anyone involved in preparing, facilitating or supporting acts of international terrorism.

Moreover, in examining his habeas corpus petition, Judge Walton appeared to remain blissfully unaware that, despite being, at most, a lowly foot soldier, al-Bihani was held in a variety of secret CIA prisons in Afghanistan before his transfer to Guantánamo, where he was subjected to torture.

As revealed in the background to al-Bihani’s case, accepted by both al-Bihani and the government, he cut a depressing figure prior to traveling to Afghanistan in the summer of 2000. As Judge Walton explained, "During the time he resided in Saudi Arabia, the petitioner was abusing various drugs, including alcohol, marijuana, hashish, crystal methamphetamine, and depression pills," Judge Walton also noted, "The petitioner began to 'increase [his] intake of alcohol and drugs,’ when his fiancee ended their engagement due to her concerns that 'she would fall out of grace with her father if she married a Yemeni against his wishes.’"

Apparently persuaded to travel to Afghanistan by his brother Mansour, described as "an experienced fighter who fought against the Russians in Chechnya," and who "had close relationships with senior Chechen fighters and other individuals who were engaged in training men to fight in Chechnya and in other countries," he traveled to Afghanistan with his brother, where, as Judge Walton concluded, he "received, at a minimum, weapons training" at the al-Farouq training camp, established by the Afghan warlord Abdul Rasul Sayyaf in the early 1990s, but associated with Osama bin Laden in the years before the 9/11 attacks, and also stayed in Afghan guest houses reportedly associated with al-Qaeda.

In authorizing al-Bihani’s ongoing detention, Judge Walton gave weight to al-Bihani’s admission that he "became, and was part of, al-Qaeda at least during the five months period he was training at al-Farouq," even though he also noted that his training was far from rigorous. "Although he was enrolled at al-Farouq for approximately five months," Judge Walton explained, "he only 'received approximately two months of training,’ because he would train for approximately 'a week or two weeks’ before feigning illness in order to leave and 'do hashish or tobacco.’" Judge Walton added that al-Bihani "repeated this cycle several times," and also explained, "Towards the end of his time at al-Farouq, the trainers at the camp informed him that he was 'not ready physically because [he] keep[s] leaving and going back, — adding that the trainers reportedly "concluded that he was of 'no use,’ and 'they kick[ed him] out of the camp.’"

Personally, I find it troubling that an obviously drug-addled, inconsistent and unreliable recruit can nevertheless be regarded as "part of" al-Qaeda, as it tends to render meaningless the supposed threat posed by al-Qaeda if useless recruits can legitimately be held, even when, as with al-Bihani, they had no knowledge of international terrorism, and not even a demonstrable commitment to al-Qaeda’s military activities in Afghanistan.

Judge Walton, however, seemed unconcerned that there appeared to be no basis for concluding that al-Bihani had ever posed a threat to the United States. Proceeding to an explanation of how he was captured, he explained that, in late 2001, having become separated from his brother Mansour (who was "ill" and was transported to Quetta in "a tractor-trailer truck" for those "who appeared sick or injured"), al-Bihani traveled through Pakistan to Iran, "with a group of other men." Near Zahedan, he was supposed to be reunited with his brother, and with Hamza al-Qa’eity, who ran a guest house in Kabul described by al-Bihani as "one that jihad fighters used as a transition point." However, as Judge Walton explained, at "the exact time" that al-Qa’eity arrived to pick him up from the house of an Iranian family, where he was staying, the Iranian police — or intelligence services — "descended on the house and apprehended" him — and, presumably, Hamza al-Qa’eity as well.

The hidden story of ten men rendered from Iran to Afghanistan — including Tawfiq al-Bihani

As I mentioned in the introduction to this article, what Judge Walton appeared not to know — or ignored in his ruling — was the fact that, after al-Bihani was subsequently "flown to Afghanistan" and "transferred to United States custody," he was held in a variety of secret CIA prisons.

This information is readily accessible, because I explained in my book The Guantánamo Files that al-Bihani was one of ten men seized in Iran who were flown to Afghanistan and then handed over to US forces. One of these men, Aminullah Tukhi, an Afghan released from Guantánamo in December 2007, explained that six Arabs, two Afghans, an Uzbek and a Tajik had been delivered to the Americans, and I was able to identify six of them — Tukhi, Tawfiq al-Bihani, Walid al-Qadasi, a Yemeni transferred to the custody of his home government in April 2004, Wassam al-Ourdoni, a Jordanian released in April 2004, Rafiq Alhami, a Tunisian released in Slovakia in January this year, and Hussein Almerfedi, a Yemeni who won his habeas petition in July this year. Unaccounted for are the other four men mentioned by Aminullah Tukhi — an Arab, an Afghan, the Uzbek and the Tajik — although it seems possible that one of the disappeared was Hamza al-Qa’eity.

Confirmation that al-Bihani was one of the men came from an unexpected source. Abu Yahya al-Libi, one of four prisoners who escaped from Bagram in July 2005, described, in a post on an obscure French language website, which has since disappeared from the Internet, 12 prisoners who were held with him in Bagram, one of whom was Tawfiq al-Bihani. He also explained how all the men had passed through a network of secret CIA prisons in Afghanistan, where they had endured "hard torture," and added, in al-Bihani’s case, that he was captured in Iran at the start of 2002, that he had met him in June 2002 in a prison he identified as "Rissat 2," and that he was taken to another prison in September 2002, after which he never saw him again, and thought that he may have been transferred to Guantánamo.

Al-Libi also explained that Tawfiq al-Bihani thought that his brother Ghaleb, who had also been in Afghanistan, had been killed, but that the Americans had told him that he had been captured — and it later emerged that this was correct. Ghaleb al-Bihani lost his habeas corpus petition in January 2009, on the basis that he was a cook for Arab forces supporting the Taliban, and also had his appeal denied in January this year, consigning him to the same form of court-approved indefinite detention as his brother.

The torture in secret CIA prisons of three men rendered from Iran to Afghanistan

The accounts of three of the men rendered from Iran to Afghanistan are publicly available, and they are, to be blunt, horrific. Al-Ourdoni, a missionary seized with his wife and new-born child, explained after his release that his American captors "put me in jail under circumstances that I can only recall with dread. I lived under unimaginable conditions that cannot be tolerated in a civilized society." He said that he was first placed in an underground prison for 77 days, and stated, "this room was so dark that we couldn’t distinguish nights and days. There was no window, and we didn’t see the sun once during the whole time." He added that he was then moved to "prison number three", where the food was so bad that his weight dropped substantially, and was then held in Bagram for 40 days before being flown to Guantánamo.

In an interview with a UN rapporteur, Walid al-Qadasi provided the following explanation of his treatment, which, like al-Ourdoni’s account, was included in a major UN report on secret detention earlier this year:

He was held in a prison in Kabul. During US custody, officials cut his clothes with scissors, left him naked and took photos of him before giving him Afghan clothes to wear. They then handcuffed his hands behind his back, blindfolded him and started interrogating him. The apparently Egyptian interrogator, accusing him of belonging to al-Qaeda, threatened him with death. He was put in an underground cell measuring approximately two meters by three meters with very small windows. He shared the cell with ten inmates. They had to sleep in shifts due to lack of space and received food only once a day. He spent three months there without ever leaving the cell. After three months, Walid al-Qadasi was transferred to Bagram, where he was interrogated for one month.

In a lawsuit filed in April 2009, Rafiq Alhami stated that, for a year, he was held in three CIA "dark sites," where "his presence and his existence were unknown to everyone except his United States detainers," and where, at various times, he was "stripped naked, threatened with dogs, shackled in painful stress positions for hours, punched, kicked and exposed to extremes of heat and cold." Moreover, at Guantánamo, he told a military review board that one of the prisons was the "Dark Prison" near Kabul, which I have previously described as "a medieval torture dungeon with the addition of ear-splittingly loud music and noise, which was pumped into the cells 24 hours a day," based on accounts by prisoners who were held there, including the British resident Binyam Mohamed, who described his time there as "the worst days of his captivity" — worse than the 18 months in Morocco, where the CIA’s proxy torturers regularly sliced his genitals with a razorblade.

Alhami told his review board that he was tortured for three months in the "Dark Prison," where, he said, "I was threatened. I was left out all night in the cold … I spent two months with no water, no shoes, in darkness and in the cold. There was darkness and loud music for two months. I was not allowed to pray … These things are documented. You have them."

The torture of Tawfiq al-Bihani

However while Judge Walton may not have come across my book, or the inclusion of this information in the UN report on secret detention earlier this year, I can’t understand how he would not have known about al-Bihani’s treatment from his lawyer, George M. Clarke III, because, in the book The Guantánamo Lawyers: Inside a Prison, Outside the Law, published last year, Clarke reproduced a letter from al-Bihani in which he provided a detailed explanation of what had happened to him after he was delivered to Afghanistan from Iran.

In his letter, al-Bihani explained that he was initially held in a vile Afghan prison in Kabul, where he and the other prisoners from Iran were hidden from Red Cross representatives until one of their fellow prisoners informed them of their existence. His first encounters with US agents — he believes they were from the FBI — took place in this prison, and he described his first interrogation as follows:

I was handcuffed behind and they put a hood on my head so that I could not see anything. When I entered the interrogation room, the American guards pushed me down to the ground in a very savage manner. They started to cut my clothing with scissors. They undressed me completely and I was nude. They made me sit on a chair and it was very cold. I was also afraid and terrorized because the guards were aiming their weapons towards me. The interrogator put his personal gun on my forehead threatening to kill me.

Al-Bihani explained that he stayed in this prison for around ten weeks, and was then moved to another prison where he was held in solitary confinement for "approximately five months and ten days." He added that the guards were Afghan, that they handed out "very bad treatment," and that "The interrogation was also very savage." He was then moved to a third prison, which appears to have been the "Dark Prison," and en route US soldiers "started to hit me and strangle me, they would put a rope around my neck and I was about to die." This is his description of the "Dark Prison":

This was absolutely the worst prison. It was a very dark prison and there was no light, no bed or a carpet, the floor was semi cement. The restraints on my feet were very tight; they put me into a cell and kept me hanging tied to the wall for almost ten days. […]

The irritating music 24 hours a day was very loud and hard banging on the door. When I used to go for interrogations, I was unable to walk because of the restraints on my legs and tightness on my feet. Would fall down to the ground and scream that I cannot walk. They would pick me up from the ground and I would walk with them while they were hitting me on the way to the interrogation until I would bleed from my feet. When I would fall to the ground, they would drag me while I am on the ground. Then they would bring me back to the cell and sprinkle cold water on me. Sometimes they would put a weapon on my head threatening to kill me using some provocative statements which I cannot mention in this letter.

After ten days, they brought me down from the hanging position and made me sit on the floor. Then they tied my hands upwards for approximately one month so that I could not lie down on the floor for comfort, therefore I was unable to sleep except for quarter of an hour every day.

After one month and ten days, they removed all my restraints, however I was unable to rest or sleep because of extreme hunger and cold and the loud irritating music and the banging on the door. I stayed in this prison for approximately two months and a half and I had no idea whether it is day or night as it was extremely dark and oppressive conditions.

After this, al-Bihani was moved to Bagram, where, he said, "the treatment was very bad there as well," and was then flown to Guantánamo.

A bleak conclusion

Beyond a rather obvious question raised by the accounts above — did Tawfiq al-Bihani confess that he was "part of" al-Qaeda (when he so obviously wasn’t) because of the torture to which he was subjected in Afghanistan? — what this apparently overlooked torture account most vividly and balefully demonstrates is how effortlessly the torture of al-Bihani has become irrelevant to his case.

However, in Tawfiq al-Bihani’s case it is difficult to escape the conclusion that, even had Judge Walton known, or chosen to pay attention to these reports, it would not have fundamentally altered his conclusion that this failed recruit was sufficiently involved with al-Qaeda to justify his ongoing detention. That, as I concluded above, already demonstrates that the classification process for determining who may be legally detained is far too loose, but when evidence that al-Bihani was tortured in secret prisons is also removed from the picture, the end result is far bleaker.

Somewhere along the line, questions need to be raised not only regarding the justification for continuing to hold insignificant individuals at Guantánamo who never raised arms against anyone and were not involved in terrorism, but also regarding the ease with which detailed information about the torture of prisoners in a series of secret prisons run by the CIA can be so thoroughly ignored that Judge Walton failed to mention it at all.

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